Sullivan v. Thorndike (dissenting)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** SULLIVAN v. THORNDIKE DISSENT MCDONALD, J. Concurring in part and dissenting in part. Although I agree as to the breach of contract count, I respectfully disagree with the conclusion in part II B of the majority opinion that the plaintiff, John Sullivan, has failed to make out a prima facie case of statutory theft by embezzlement. I conclude, considering the plaintiff s evidence in a favorable light, that the plaintiff presented sufficient evidence to make out a prima facie case. A trier of fact could find that the plaintiff, knowing certain properties could be purchased because of the plaintiff s relationship with the owners, contacted the defendant Thomas Thorndike, a lifelong friend, to have the defendant form a limited liability company in which the plaintiff and the defendant would be members. After acquiring these properties, the plaintiff and the defendant would share equally in any profits from their resale. To purchase the properties, the plaintiff advanced the sum of $82,000. When the defendant formed Diko Development, LLC (Diko), which took title to the properties, he did not, as promised, make the plaintiff a member of Diko. Although the defendant led the plaintiff to believe that the plaintiff was a member of Diko, the defendant and the defendant s wife were its only members. Unknown to the plaintiff, the defendant then mortgaged one of the properties, and the defendant obtained and kept the entire proceeds, the net of a $60,000 mortgage loan. When this property was sold and the mortgage was paid off, there were no funds to repay the plaintiff s advance and to pay the plaintiff half the profits while the defendant had received $93,000. To establish a prima facie case of embezzlement, the plaintiff had to produce evidence that the funds he gave to the defendant belonged to the plaintiff and that, without the plaintiff s authorization, the defendant intentionally misappropriated the funds to benefit himself to the detriment of the plaintiff. See State v. Radzvilowicz, 47 Conn. App. 1, 19 22, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997); see also General Statutes ยง 53a-119 (1); State v. Lizzi, 199 Conn. 462, 467, 508 A.2d 16 (1986); State v. Moreno, 156 Conn. 233, 238, 240 A.2d 871 (1968). I conclude that the plaintiff did so. Accordingly, I respectfully dissent.
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